6A: Right to counsel; identification procedures Flashcards
6A vs. 5A: invocation
The Sixth Amendment:
- The right automatically attaches once there has been an indictment, information, or other formal charges.
- It exists unless a defendant knowingly and intelligently waives the right.
The Fifth Amendment:
The right must be affirmatively invoked by the defendant.
6A vs. 5A: scope of application
The Sixth Amendment:
- The right to counsel is offense-specific: it applies only to offenses (and lesser includeds) for which the defendant has been charged;
- The right applies regardless of whether the defendant is in custody.
The Fifth Amendment:
The Miranda right applies to custodial interrogation for any charge but not to non-custodial interrogation.
Right to counsel
The Sixth Amendment right to counsel applies to:
(1) All felony prosecutions and to misdemeanor prosecutions in which jail time or suspended jail sentence is imposed
(2) during all critical stages of the prosecution.
Critical stages of the prosecution: photo arrays
Neither the defendant nor her lawyer has the right to be present, but police must turn over the array to the defendant.
Lineups: pre-indictment
The defendant has no right to counsel for pre-indictment lineup, even if she has already been indicted for a separate crime.
Lineups: post-indictment
The defendant has a right to have counsel present, and if the right is violated, evidence that the witness identified the defendant at the lineup must be excluded.
Exclusion of in-court identification
The court will consider whether the lineup was impermissibly suggestive if the defendant moves to suppress lineup evidence.
Even if an out-of-court identification procedure is unnecessarily suggestive, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry.
Lineups: in-court identification
The prosecution must establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup.
Right to counsel: Blockburger test
Two different crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.
Attachment of the right to counsel
The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun.
The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Critical stages of the prosecution
Critical stages include evidentiary hearings; post-indictment lineups; post-indictment interrogations; and all parts of the trial process, including guilty pleas and sentencing.
Non-critical stages include pre-indictment investigative lineups, taking of handwriting exemplars, witnesses looking at photo arrays, discretionary appeals, and post-conviction (habeas) proceedings.
Right to counsel: contact with the defendant
Once proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant’s attorney.
Right to counsel: probation revocation
An offender does not have an absolute constitutional right to counsel at a probation revocation hearing when an already-imposed sentence is executed as a result of the revocation of probation.
The right only attaches if necessary for a fair trial.
Harmless error
Only the failure to provide counsel at trial results in automatic reversal of a conviction.
At other non-trial stages, the denial of counsel is subject to the harmless-error test.
